| Date | 12 December 2007 |
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| Judgment | London Fire and Emergency Planning Authority – v – Halcrow Gilbert Associates Limited and Others [2007] EWHC 2546 (TCC) |
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| The Issue | The distinction between a fitness for purpose obligation and the exercise of reasonable skill and care |
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| Implication |
Those providing design services should ensure that, where possible, the duty owed is one of reasonable skill and care and not fitness for purpose. |
printIt is a well established principle that, in the absence of any terms to the contrary, a professional person should undertake their duties with reasonable skill and care. Most contracts for professional services will contain wording to this effect, and a term will be implied to this effect in any that do not. In Bolam - v – Friern Hospital Management Committee the House of Lords described this standard as being “… the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill … it is sufficient that he exercises the ordinary skill of the ordinary competent man exercising that particular art”. The position of a professional person in providing services with reasonable skill and care may be contrasted with the duty owed by a contractor when undertaking a building project where, unless there is a term within the contract to a contrary effect, the contractor’s obligation is to ensure that the works, when completed, will be fit for their intended purpose. This obligation will also extend to any design work undertaken by the contractor and is a potentially far more onerous obligation, as it guarantees a result rather than simply the use of reasonable skill and care. In practice this obligation is frequently diluted, not least because professional indemnity insurance tends to be concerned solely with the exercise of reasonable skill and care. One way in which this obligation can be diluted is by virtue of the fact that many important design decisions may be made by the client’s designers, with the result that no reliance is being placed upon the contractor. Additionally, many standard form contracts contain a provision to the effect that, in respect of design, the contractor’s duty is limited to the duty of an independent professional designer. A provision such as this is found in clause 2.17.1 of the JCT 2005 Design and Build form of contract or option X15 of the third edition of the NEC form of contract. The recent case of London Fire and Emergency Planning Authority – v – Halcrow Gilbert Associates Limited and Others (previously considered in my article dated 14 November 2007) contained an interesting illustration of the difference between the application of reasonable skill and care and the achievement of fitness for purpose. By way of background, a fire training facility was (unfortunately) the subject of a real fire and the employer considered its consulting engineer had been negligent by designing in such a way that this could occur. A key feature of the design was that oil based artificial smoke was distributed via ducts to the various rooms in which the training exercises were to take place. The mineral oil in this smoke coalesced on the sides of the ducts and formed droplets which then leaked out of the ducts, contaminated their insulation and then caught fire. One question which had to be decided was whether the engineer who designed the system had been negligent in not anticipating that oil deposits would be formed in this manner. This was a novel design and as a consequence the employer said that the engineer should have carried out, as a part of the design process, investigations that would have identified this risk, such that it could be addressed within the design. Such design provision might have included ensuring that the ductwork was designed in such a way that any deposits would not have leaked into the insulation. As a consequence of its failure to undertake these investigations the employer alleged that the consulting engineer had failed to exercise reasonable skill and care. The judge approached the question from the viewpoint of a reasonably qualified engineer, with the level of expertise to engage in a project of this nature at the time the question would have been posed (i.e. at the design stage). The evidence of the consulting engineer was that it expected that a very fine film of oil would be formed within the duct, such that whilst it could not be seen, it could be felt if a hand was rubbed upon it. Additionally the engineering expert appointed by the designer supported this expectation in his evidence. There was no literature to contradict this conclusion, and none of the various risk assessments carried out before this stage of the design process identified the formation of oil droplets as a potential hazard. Thus the conclusion was reached that the consulting engineer had considered what would happen when the mineral oil impinged on the internal surface of the ductwork and, whilst the conclusion it reached (i.e. that it would form into a fine film) subsequently turned out to be incorrect, it was nonetheless a reasonable conclusion for a professional designer to reach in those circumstances. Having reached this reasonable conclusion, there was no expectation that oil droplets would be formed and hence no need to address within the design the consequence of the formation of such droplets. Whilst the judge had no need to consider whether the design was fit for purpose, the fact that it subsequently caught fire when being operated in the intended manner does tend to speak for itself. This case therefore only serves to emphasise the distinction that can sometimes be drawn between the exercise of reasonable skill and care and the achievement of fitness for purpose and the importance, for contractors and designers, of ensuring that wherever possible their performance is to be gauged against the former standard.
CJ-0749
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